Mayer Brown counsel Lisa Pino was quoted in an article featured in The California Lawyer Daily Journal discussing the uptick in Immigration and Customs Enforcement (“ICE”) worksite investigations, which have doubled since October 2017. This increase aligns with the Trump Administration’s immigration policy priorities, published in late 2017, to hire 10,000 more ICE officers and 300 Federal prosecutors. Pino advises employers to focus on compliance, mitigate risk, and adopt best practices to better manage the immigration needs for their workforce.
In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s. These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).
Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program or otherwise violate the terms of their status. Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States. The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”
The change comes on the heels of an unannounced agency amendment to website guidelines impacting F-1 foreign students in the Science, Technology, Engineering, and Mathematics arena (STEM), who capitalizing on a three-year post-completion work authorization period known as optional practical training (OPT). This change prohibits STEM students from performing services at third-party (e.g., client) worksites as part of their STEM OPT curriculum. Continue Reading USCIS Changes Policies on Unlawful Presence Calculation and Worksite Location Requirements for Foreign Students
An article in Law360 outlines the key items addressed in the Trump administration’s spring 2018 regulatory agenda, which was made available to the public in early May 2018. Topics on the list include structural changes to the Executive Office for Immigration Review, the office within the US Department of Justice that oversees US immigration courts; changes to the EB-5 investor visa program, including increasing the minimum investment amount from $500,000 to $1.35 million; and rescission of the International Entrepreneur Rule (“IER”), a program implemented during the Obama administration to grant parole to entrepreneurs seeking to establish and build startup businesses in the United States.
The article can be read here.
The Texas Attorney General, joined by six other states, filed suit against the federal government yesterday to terminate the Deferred Action for Childhood Arrivals (DACA) program on the basis that DACA derives from an executive overreach by President Obama in 2012. The suit was filed in the Fifth Circuit in Brownsville, Texas, where a November 2015 decision overruled President Obama’s plans to protect more than 4 million individuals from deportation.
The lawsuit further complicates the fate of DACA recipients, also known as Dreamers, as other district court rulings remain active. Most recently, a Washington, DC district judge ordered that DACA renewal applications should continue, and that new applicants may be eligible to apply if the federal government fails to justify within 90 days why DACA should cease altogether.
On April 24, 2018, Judge John D. Bates of the Federal District Court for the District of Columbia ruled against the Trump Administration’s “unlawful” rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Arguing that the decision to end DACA was “arbitrary and capricious because the department failed adequately to explain its conclusion that the program was unlawful,” Judge Bates stayed his decision for 90 days to offer the Department of Homeland Security (“DHS”) the opportunity to provide sound justification for terminating the program.
Should DHS fail to adequately address its reasoning for canceling the DACA program within the timeframe, the government will be ordered to once again accept and process new and renewal DACA applications for eligible applicants.
On Wednesday, April 25, 2018, the US Supreme Court will hear argument in Trump v. Hawaii. Mayer Brown’s Legal Update provides background on this challenge to the third in a series of travel bans issued by President Trump and summarizes the questions before the Court in this final oral argument of its current term.
On Thursday, April 6, 2018, federal and state officials arrested approximately 97 workers at a meat-processing facility in Tennessee. The charges faced by the individuals primarily relate to immigration-related offenses.
Media reports noted that the federal affidavit submitted in connection with the raid stated that the facility was targeted as a result of an Internal Revenue Service (IRS) criminal investigation related to whether the company had been filing false tax returns and avoiding payment of payroll tax. The company’s bank reported repeated large cash withdrawals to the IRS, which prompted the investigation. The IRS contends the funds were used to pay undocumented workers.
On March 27, 2018, ten former officials from the US Department of Justice, Department of Homeland Security, Immigration and Naturalization Service, Federal Bureau of Investigation, and Department of Health and Human Services filed an amicus brief to the Supreme court challenging the government’s misplaced reliance of the “presumption of regularity” in the Trump Travel Ban case. “The presumption of regularity is founded on the commonsense idea that courts should assume that government officials ‘have properly discharged their official duties’…before entertaining doubts about the integrity of official acts or documents.” As former General Counsel of the Immigration and Naturalization Service, as well as former Executive Associate Commissioner and former Deputy General Counsel of that agency, Paul Virtue was one of the participants in the brief. The brief was submitted “to make clear that the “presumption of regularity” has never been an obstacle to a court’s consideration of evidence showing that government officials have acted with an improper purpose.” The brief can be read here.
On Tuesday, April 10, 2018, President Donald Trump announced that restrictions on travel would be lifted for citizens of Chad, one of eight countries included in the third version of the administration’s controversial travel ban. In doing so, the president cited improvement in Chad’s identity-management and information sharing practices. Originally announced on September 24, 2017 in the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” Travel Ban 3.0 imposed restrictions on travel for nationals of Chad and seven other countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Mayer Brown’s Legal Advisory in September 2017 addresses the precise restrictions on each of the countries. Continue Reading President Lifts Travel Ban 3.0 for Chad, But Seven Other Countries Remain Barred
BREAKING NEWS: USCIS Reaches FY 2019 Cap
USCIS announced today, April 6, 2018, that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019, as well as a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the “master’s cap.” Our Legal Update from April 5, 2018, included below, advises employers on how to prepare for the next stage – selection or rejection notices, and, for selected cases, potential RFEs.
The current administration has made US immigration policy a central focus of its “America First” stance, imposing de novo review of all visa petitions; refusing H-1Bs for an increasing volume of early-career IT workers; suspending expedited, premium processing options for H-1B filings; imposing record volumes of Requests for Evidence and audits on employers sponsoring H-1B and L-1 workers; and rolling out an aggressive fraud review process for IT staffing suppliers. In a Legal Update, Mayer Brown’s Liz Stern, Max Del Rey, and Anthony Tran advise on how to proceed during this disruptive time, when employers must be more prepared than ever.